Dangerous assumptions

Forming judgements from a candidate’s medical history alone can be
discriminatory. Any recommendations need to be based on scientific evidence, in
line with current disability law.  By Gillian
Howard

Many OH practitioners may have been in a similar position to the company
doctor advising the London Borough of Hammersmith & Fulham. Exactly what
should an employer be told about a job applicant’s pre-existing medical
condition, particularly when a job applicant with a history of mental illness
is recommended for a potentially stressful post?

OH nurses must rely on scientific evidence as the basis for their advice and
not make assumptions that such illness may recur rendering that person
unreliable – however unpalatable that may be for line managers.

Employer duties

Can an employer be held liable for disability discrimination if it does not
know the person has a disability? The answer is "yes".

The Disability Discrimination Act 1995 imposes serious duties on employers
to make reasonable adjustments to their workplace where they know or
"could reasonably be expected to know" that the person concerned had
a disability. If actual knowledge of a disability had to be proved by an
employee or job applicant, the more obtuse and ignorant the employer could
prove they were, the greater chance they would have of getting off.

The tribunals have held recently in the case of HJ Heinz & Co v Kenrick
[2000] IRLR 144, that "knowledge" in the context of the Disability
Discrimination Act 1995 does not mean the employer has to have detailed
knowledge of symptoms or aggregation of symptoms. The fact the employer takes
some form of detrimental action against someone because of the consequences of
their disability would be regarded as an act of discrimination.

A simple example is that of a secretary who is dismissed because, despite
repeated training, they persist in typing misspelt letters. Yet without the
employer, or even the employee, knowing the reason for the errors was not
ignorance or carelessness but dyslexia.

Employers are expected to investigate and question for themselves why an
employee may not be performing 100 per cent or consider the possible underlying
reasons for sickness absence.

In Kenrick’s case, the Employment Appeal Tribunal (EAT) held that there is
nothing in the language in section 5(1) of the 1995 Act that requires the relationship
between the disability and the treatment to be judged subjectively (ie through
the eyes of the employer). The correct test should be the objective one of
whether reason for the treatment in question related to that person’s
disability and not whether the employer knew of the disability.

"Indeed", the EAT noted, "unless the test is objective there
will be difficulties with credible and honest yet ignorant or obtuse employers
who fail to recognise or acknowledge the obvious".

Giving advice

When occupational health physicians give advice about the recruitment or
dismissal of a worker, it is important the advice is based on sound scientific
evidence and is given in the context of the anti-discrimination legislation.

For example, it is unacceptable for an adviser to recommend that an
applicant for a job who is pregnant be rejected on the grounds she is more
likely to have time off and to take a period of leave shortly before and after
the birth. This treatment is unlawful and protected under the Sex Discrimination
Act 1975.

Similarly, recommending that an applicant be rejected for a post because
they have had had a previous depressive illness, have recovered well, have not
had recent hospital treatment and who have received good references including their
reliability and ability to undertake stressful tasks from a former employer
will inevitably held to be unlawful under the Disability Discrimination Act
1995. This is what happened in a recent case involving the London Borough of
Hammersmith & Fulham.

In Farnsworth v 1) London Borough of Hammersmith & Fulham and 2) Dr
Cooper the second respondent, the occupational health physician, had written to
the council stating that the appellant had had health problems over several
years, "which at times had been severe and had necessitated hospital
admission, the longest of which was about 10 months in 1992/3. It appears that
her most recent hospital admission was in March 1996 for four days. Although
Farnsworth’s general practitioner reports that Farnsworth’s health had been
good over the past year, in view of her medical history, I am concerned that
she may be liable to further recurrences in the future. If such a recurrence
were to occur, her performance and attendance at work could be affected.’

The employer tried to argue it had no knowledge of Farnsworth’s previous
mental illness and therefore could not be held to have discriminated under the
Act.

Anyone, however, reading the words "the appellant had had ill-health
problems over several years, which at times had been severe and had
necessitated hospital admission, the longest of which was about 10 months in
1992/3" would know that this job applicant had had a major illness at some
time in the past.

The EAT held that the tribunal found as fact the employer "knew or
should have knownÉof Farnsworth’s disability".

Conclusion

Every occupational health physician and nurse should ensure they are up to
date with case law on the Disability Discrimination Act 1995 and that they
understand the potential minefield that they are entering when writing or
making recommendations as to fitness for work.

The Disability Discrimination Act 1995 protects people with disabilities
from discrimination on the grounds they have or have had a disability, unless
this can be justified.

"Justification" in s5(3) of the Act means the employer has to show
that the reason for the discriminatory act is both "material to the
circumstances of the particular case and substantial". The word
"material" means relevant and "substantial" means that the
disability must have a significant impact on their ability to do the job in
question.

In this case, the circumstances were that Farnsworth had recovered well from
her previous depressive illness and her most recent hospital treatment had been
some three years earlier for four days. Her own GP had reported that health had
"been good over the past year" and she had held down two part-time
jobs in the same field successfully. There could therefore be no justification
in law for taking the view that because of her past illness, she was
unemployable.

Gillian Howard is a consultant at solicitors Howard & Howard

Farnsworth v London Borough of Hammersmith & Fulham and Dr Cooper:
what went wrong?

1. The council and its OH physician assumed that Farnsworth’s attendance in
the future would be poor. There was no reason to assume this as her health had
been good since 1996 and she had held down two part-time jobs since that time
with no reported attendance problems.

2. She had received excellent references and no mention was made of poor
attendance or attendance problems.

3. The first respondent had relied upon its OH physician’s
"assumption" that Farnsworth "would have a poor attendance
record".

4. No chance was given to Farnsworth to comment on the possibility that her
attendance would not be up to standard. It is important to give feedback to a
job applicant where a medical history has been revealed and to act promptly
after the results of a medical assessment are known.

5. No discussion took place with her after the first respondent withdrew the
job offer.

6. The tribunal noted that, in fact, Farnsworth had to write to the first
respondent expressing her "anxiety at not having heard from the first
respondent as to the progress of her application".

7. The EAT held that there was no justification for the second respondent
recommending withdrawing the offer of employment.

8. There was no objective evidence that Farnsworth’s attendance would not be
up to standard. There was no reason to presume that her attendance record would
not have been "first class".

9. In the code of practice published under the Disability Discrimination Act
1995 in paragraph 4.20, paragraph C7 it states: "Where a person has a
mental illness such as depression, account should be taken of whether, although
that person has a physical ability to perform a task, they are, in practice,
unable to sustain an activity over a reasonable period".

10. Farnsworth had satisfied two employers working in a part-time capacity
and appeared to have conducted both those jobs satisfactorily.

11. She probably would have initially been employed on a probationary
period, during which time her attendance and conduct would have been more
closely monitored.

12. Dr Cooper did not base her decision on fact but on certain
(discriminatory) assumptions.

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